NO. 12-12-00033-CR

 

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JAMES EARL ROBERTSON, § APPEAL FROM THE 114TH

APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,

APPELLEE § SMITH COUNTY, TEXAS

 

MEMORANDUM OPINION

James Earl Robertson appeals his conviction for unlawful possession of a firearm by a 

felon. In three issues, Appellant argues that there is insufficient evidence to corroborate the 

testimony of accomplice witnesses, the trial court erred by admitting inadmissible hearsay, and his 

trial counsel rendered ineffective assistance. We affirm.

BACKGROUND

In October 2006, Appellant was convicted of unlawful possession of a firearm by a felon 

and sentenced to eight years of imprisonment. On June 18, 2011, he sustained a gunshot wound at 

his residence. At the time of the incident, Appellant was on parole for his October 2006 conviction 

until May 2014. Appellant’s girlfriend, Kristian Faulkner, and his mother, Lydia Toshach, went to 

the hospital with Appellant. At the hospital, Faulkner told Officer Jessica Doughten, a patrol 

officer with the Tyler Police Department, that Appellant was shot by an unknown third party while 

he was working on his pickup truck. According to Officer Doughten, Faulkner stated Appellant 

was on his back, on the ground, and underneath the vehicle when he was shot. As the investigation 

proceeded, however, Faulkner told conflicting stories about how Appellant was shot.
2

Ultimately, Appellant was charged with unlawful possession of a firearm by a felon, a third 

degree felony. 1 The indictment also included one felony enhancement paragraph. 2 Appellant 

pleaded “not guilty.” At trial, Faulkner testified that when the shooting occurred, she was standing 

in front of Appellant who was sitting on the bed. She stated that she and Appellant were holding 

the weapon when the gun fired. She also stated that they both had their hands on the gun, trying to 

dislodge a bullet. 

Because of Faulkner’s initial version of the incident, numerous officers with the Tyler 

Police Department were dispatched to Appellant’s residence to investigate the shooting. Sergeant 

Matthew Leigeber, a patrol sergeant with the Tyler Police Department, testified that he was 

dispatched to Appellant’s residence, and was the first police officer to arrive. He stated that he 

approached Appellant’s residence on foot and saw a person suddenly appear around the corner of 

the house with a box of bullets in his hand. Sergeant Leigeber stated that the person, David Louis 

Nail, had a box of .22-caliber ammunition and a .22 caliber handgun. Sergeant Adam Tarrant, a 

patrol sergeant with the Tyler Police Department, testified that Nail told him Toshach called him at 

work and told him that he needed to come to the residence and pick up a gun. 

Detective Gregg Roberts, a detective with the major crimes unit of the Tyler Police 

Department, testified that he interviewed Faulkner at the police department on the night of June 18, 

2011. He stated that Faulkner said Appellant shot himself while cleaning the gun. Further, he 

testified, she denied shooting Appellant. Detective Craig Shine, also a detective with the major 

crimes unit of the Tyler Police Department, testified that in the early morning of June 19, 2011, he 

interviewed Faulkner. He stated that at first, Faulkner explained that Appellant was lying on his 

back working on a truck when he was shot. However, Detective Shine testified that this 

explanation was inconsistent with Appellant’s injury. After speaking with Faulkner again, he 

operated under the theory that Appellant shot himself. Further, Detective Shine stated that he 

interviewed Appellant twice at the hospital. The first time he interviewed Appellant, he 

acknowledged that he had been shot, not that he had shot himself. He interviewed Appellant 

 

1

See TEX. PENAL CODE ANN. § 46.04 (a) (1)(West 2011).

2

If it is shown on the trial of a third degree felony that the defendant has previously been finally convicted of 

a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished 

for a second degree felony. See TEX. PENAL CODE ANN. § 12.42(a) (West Supp. 2012.)
3

again a few days later after he began to recover from his injuries. Detective Shine stated that during 

the second interview, Appellant admitted he was trying to dislodge a bullet from the firearm when 

he accidentally shot himself. Appellant told Detective Shine that he had possession of the firearm 

for about ten minutes.

At the conclusion of the trial, the jury found Appellant guilty of unlawful possession of a 

firearm by a felon as charged in the indictment. Appellant elected to have the court assess 

punishment. After a sentencing hearing during which Appellant pleaded “true” to the felony

enhancement paragraph, the trial court assessed his punishment at twenty years of imprisonment

and court costs.

3

The trial court also granted the State’s motion to cumulate sentences, and 

accordingly ordered Appellant’s sentence to run consecutively with the sentence Appellant 

received for his parole revocation in connection with his October 2006 conviction. This appeal 

followed. 

ACCOMPLICE WITNESS TESTIMONY

In his first issue, Appellant argues that there was insufficient evidence to corroborate the 

testimony of two accomplices, Nail and Faulkner.

4

Applicable Law

A conviction cannot be had upon the testimony of an accomplice unless the testimony is 

corroborated by other evidence tending to connect the accused with the offense committed. TEX.

CODE CRIM. PROC. ANN. art. 38.14 (West 2005). Further, the corroboration is not sufficient if it 

merely shows the commission of the offense. Id. The accomplice witness rule is a statutorily 

 

3 An individual adjudged guilty of a second degree felony shall be punished by imprisonment for any term of 

not more than twenty years or less than two years and, in addition, a fine not to exceed $10,000.00. See TEX. PENAL 

CODE ANN. § 12.33 (West 2011).

4 Appellant’s argument is difficult to parse. He states the issue as “The verdict is contrary to the law and the 

evidence inasmuch as the verdict was predicated on uncorroborated accomplice testimony.” In accordance with his 

stated issue, Appellant initially complains about uncorroborated accomplice testimony. Then, Appellant complains 

about the factual sufficiency of the evidence. However, the Texas Court of Criminal Appeals has held that the Jackson 

v. Virginia legal sufficiency standard is the only standard a reviewing court should apply in determining whether the 

evidence is sufficient to support each element of a criminal offense that the state is required to prove beyond a 

reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). At the 

conclusion of his argument under his first issue, Appellant reverts to his complaint that testimony from an accomplice 

was not corroborated. Therefore, we construe Appellant’s first issue as solely a complaint that the accomplice witness 

testimony was not adequately corroborated.
4

imposed review and is not derived from federal or state constitutional principles that define the 

legal sufficiency standard. See Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). 

In order to determine whether the accomplice witness testimony is corroborated, we must 

eliminate all accomplice evidence and determine whether the other inculpatory facts and 

circumstances in evidence tend to connect the defendant to the offense. McDuff v. State, 939 

S.W.2d 607, 612 (Tex. Crim. App. 1997). The nonaccomplice evidence does not have to directly 

link the defendant to the crime, nor does it alone have to establish his guilt beyond a reasonable 

doubt; but rather, the nonaccomplice evidence merely has to tend to connect the defendant to the 

offense. Id. at 613. The appellant’s presence in the company of the accomplice before, during, 

and after the commission of the offense coupled with other suspicious circumstances may tend to 

connect the defendant to the offense. See Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. 

App. 1996). Moreover, evidence that the defendant was near or at the place of the offense around 

the time of its occurrence is proper corroborating evidence. See Burks v. State, 876 S.W.2d 877, 

888 (Tex. Crim. App. 1994).

Application

We assume without deciding that Nail and Faulkner were accomplices. Faulkner testified 

that she was standing in front of Appellant who was sitting on the bed, that they were attempting to 

dislodge a bullet, and that they were holding the weapon when it discharged. Nail testified that

Toshach called him on June 18, 2011, and informed him that Appellant was hurt and in the 

hospital. Then, he stated, Faulkner got on the telephone and asked him to go to the house, lock it, 

pick up the gun, and hide it. He stated that he found the gun at the foot of Appellant’s bed. 

Faulkner’s second version of the events to Officer Roberts and Nail’s trial testimony was 

corroborated by Appellant’s second statement to Detective Shine. Detective Shine testified that in 

his second statement, Appellant admitted trying to retrieve a bullet that was jammed in the firearm 

when he accidentally shot himself. Further, Detective Shine stated, Appellant admitted possessing 

the weapon for approximately ten minutes.

Finally, two additional pieces of evidence corroborate Faulkner’s and Nail’s testimony. 

First, Detective Shine testified that the weapon had a shell casing in its chamber and was 

“jammed,” which was consistent with Faulkner’s testimony. Second, Detective Shine stated that 

Appellant’s gunshot wound and the trajectory of the bullet were not consistent with someone being 
5

shot while lying on his back underneath a truck. Instead, he testified, the bullet’s trajectory was 

consistent with someone shooting himself or being shot from the front. From this evidence, we 

conclude that there is direct and circumstantial corroborative evidence that tends to connect 

Appellant to the offense of unlawful possession of a firearm by a felon. See TEX. CODE CRIM.

PROC. ANN. art. 38.14. We overrule Appellant’s first issue.

HEARSAY

In his second issue, Appellant complains that the trial court erred by allowing hearsay 

testimony regarding Appellant’s possession and control of the weapon.5

Standard of Review

A trial court has considerable discretion in determining whether to exclude or admit 

evidence. See Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990); State v. 

Dudley, 223 S.W.3d 717, 724 (Tex. App.—Tyler 2007, no pet.). Absent an abuse of discretion, 

we will not disturb a trial court’s decision to admit or exclude evidence. See Martin v. State, 173 

S.W.3d 463, 467 (Tex. Crim. App. 2005); Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 

2003). A trial court abuses its discretion if its decision falls outside of the “zone of reasonable 

disagreement.” See Montgomery, 810 S.W.2d at 391. In conducting this review, we defer to the 

trial judge’s assessment of the weight and credibility of the evidence, and view the evidence in the 

light most favorable to the trial court’s decision. See Kelly v. State, 824 S.W.2d 568, 574 (Tex. 

Crim. App. 1992). Further, we must uphold the trial court's ruling if it is reasonably supported by 

the record and is correct under any theory of law applicable to the case. Willover v. State, 70 

S.W.3d 841, 845 (Tex. Crim. App. 2002). We must also review the trial court’s ruling in light of 

what was before the trial court at the time the ruling was made. Id.

A violation of the evidentiary rules that results in the erroneous admission of evidence is 

 

5 Again, Appellant’s argument is difficult to decipher. He states the issue as “The trial court erred in 

permitting hearsay testimony over [objection] which was received to prove [Appellant] exercised control of the 

weapon.” He then claims that Nail’s testimony was “offered for the purpose of establishing that Appellant had some 

control of the weapon” because Appellant’s mother called Nail and asked him to hide the gun. Appellant then 

discusses accomplice witness testimony and Rule 403 of the Texas Rules of Evidence. He discusses the probative 

value of Nail’s testimony, but does not mention its prejudicial effect. Appellant then states, “Clearly, that testimony 

was inadmissible hearsay.” He closes this portion of his brief with a discussion of harmful error. We construe 

Appellant’s second issue as solely a complaint about a hearsay statement introduced during Nail’s testimony.
6

nonconstitutional error. Kirby v. State, 208 S.W.3d 568, 574 (Tex. App.—Austin 2006, no pet.); 

see also Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Nonconstitutional error 

is reversible only if it affects the substantial rights of the accused. TEX. R. APP. P. 44.2(b); 

Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). It is well settled that the admission of 

hearsay evidence does not constitute reversible error if the same facts were proven by evidence 

introduced without objection. Thomas v. State, 621 S.W.2d 158, 164 (Tex. Crim. App. 1981) 

(op. on reh’g); Rosales v. State, 932 S.W.2d 530, 536 (Tex. App.—Tyler 1995, pet. ref’d). 

Therefore, “counsel must object every time allegedly inadmissible evidence is offered.” Hudson 

v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984).

Applicable Law

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or 

hearing, offered in evidence to prove the truth of the matter asserted.” TEX. R. EVID. 801(d). 

Generally, hearsay is inadmissible. See TEX. R. EVID. 802. As a general rule, information acted 

upon is not hearsay because it is not offered for the truth of the matter asserted, but instead is 

offered to relate how a person happened upon the scene of a crime or accident. See Schaffer v. 

State, 777 S.W.2d 111, 114-15 (Tex. Crim. App. 1989) (applying rule to testimony of police 

officer); see also Maynard v. State, No. 08-01-00359-CR, 2003 WL 22451498, at *3 (Tex. 

App.—El Paso Oct. 28, 2003, pet. ref’d) (applying same rule to testimony acted upon by private 

citizen). Information acted upon, however, is hearsay when the intent of its offer is to prove the 

truth of the matter asserted. See Schaffer, 777 S.W.2d at 115. This does not mean, however, that 

the declarant should be permitted to relate historical aspects of the situation replete with hearsay on 

the grounds that he was entitled to tell the jury the information he acted on. Id. at 114-15.

Discussion

Here, Appellant complains that the trial court erred by allowing into evidence a statement 

by Nail in which Faulkner told Nail to “pick the gun up and hide it.”6 Before Nail testified, the 

trial court heard objections to Nail’s testimony regarding his conversation with Faulkner. The 

State argued that Nail’s testimony was offered to explain how Nail was found in possession of the 

 

6 There is a conflict in the record as to whether the statement was made by Faulkner or by Toshach. Because 

Nail testified that the statement was made by Faulkner, we attribute the statement to her.
7

weapon and ammunition while leaving Appellant’s residence on the night Appellant was shot.

Appellant argued that this testimony was hearsay. The trial court overruled Appellant’s objection. 

We note that information acted upon is not hearsay because it is not offered for the truth of 

the matter asserted, but instead is offered to relate how a person happened upon the scene of a 

crime or accident. See Schaffer, 777 S.W.2d at 114-15. In this case, it was reasonable for the trial 

court to allow Nail’s statement of his conversation with Faulkner into evidence because it 

explained why Nail arrived at Appellant’s house and took possession of the weapon used in the 

shooting. 

Further, Nail’s testimony that he found the gun in Appellant’s bedroom is not hearsay. See 

TEX. R. EVID. 801(d). And Appellant’s statement to Detective Shine that he possessed the gun for 

approximately ten minutes and accidentally shot himself while trying to dislodge a bullet is not 

hearsay. A party’s own statement offered against himself is not hearsay. See TEX. R. EVID.

801(e)(2). Moreover, evidence establishing Appellant’s possession and control of the weapon 

was introduced without objection. This evidence included Faulkner’s testimony that Appellant’s 

mother called Nail and told him to hide the gun. She also testified that she told Nail where to find 

the gun. Appellant did not object to any of this testimony, and thus, any admission of hearsay 

evidence is harmless because the same facts were proven by evidence introduced without 

objection. See Thomas v. State, 621 S.W.2d at 164; Rosales v. State, 932 S.W.2d at 536. 

Accordingly, we overrule Appellant’s second issue. 

INEFFECTIVE ASSISTANCE OF COUNSEL

In his third issue, Appellant argues that he received ineffective assistance of counsel. 

Specifically, Appellant complains that his counsel was ineffective because he failed to (1) move to 

quash the indictment; (2) obtain a limiting instruction related to Nail’s hearsay testimony of what 

Faulkner told him; (3) obtain a limiting instruction related to Faulkner’s statements to the 

investigating officers; (4) request an accomplice witness testimony instruction in the jury charge;

(5) request a “confession” of Appellant instruction in the jury charge, (6) object to Faulkner’s 

testimony based on marital and spousal privilege; and (7) call Appellant’s mother, Toshach, to 

testify.
8

Applicable Law

Claims of ineffective assistance of counsel are evaluated under the two step analysis 

articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 

The first prong of the Strickland standard requires the appellant to demonstrate that trial counsel’s 

representation fell below an objective standard of reasonableness under prevailing professional 

norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65. To satisfy this step, the appellant 

must identify the acts or omissions of counsel alleged to constitute ineffective assistance and 

affirmatively prove that they fell below the professional norm of reasonableness. See McFarland 

v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds, Mosley v. 

State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). 

To satisfy the second prong of the Strickland standard, an appellant must show that the 

deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; 

Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an 

appellant must show that there is a reasonable probability that, but for counsel’s deficient 

performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at 

694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

In any case considering the issue of ineffective assistance of counsel, we begin with the 

strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. 

Crim. App. 1994). We must presume counsel’s actions and decisions were reasonably professional 

and motivated by sound trial strategy. See id. It is an appellant’s burden to rebut this presumption 

through evidence illustrating why trial counsel did what he did. Beck v. State, 976 S.W.2d 265, 

266 (Tex. App.—Amarillo 1998, pet. ref'd). Before being condemned as unprofessional and 

incompetent, defense counsel should be given an opportunity to explain his or her actions. See

Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). 

An appellant cannot meet this burden if the record does not affirmatively support the claim. 

See Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007) (without record indicating 

trial counsel’s reasons for his actions or intentions, court presumed counsel’s conduct was part of 

reasonable trial strategy); Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) 

(inadequate record on direct appeal to evaluate whether trial counsel provided ineffective 
9

assistance); Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex. App.—Corpus Christi 1992, pet. 

ref'd, untimely filed) (inadequate record to evaluate ineffective assistance claim). A record that 

specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an 

ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.] 

1994, pet. ref'd). Thus, absent a properly developed record, an ineffective assistance claim must 

usually be denied as speculative, and, further, such a claim cannot be built upon retrospective 

speculation. Bone. 77 S.W.3d at 835.

Application

Here, Appellant presents seven complaints against his trial counsel, but provides scant 

argument in support of each complaint. Additionally, Appellant’s trial counsel was not given an 

opportunity to explain his actions, because there is no record of a postjudgment hearing regarding 

ineffective assistance of counsel. With this background information in mind, we address each of 

Appellant’s complaints.

First, Appellant argues that his trial counsel should have moved to quash the indictment. 

An indictment must be specific enough to inform the accused of the nature of the accusation 

against him so that he may prepare a defense. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. 

App. 2004). Appellant contends that the indictment was “truly unintelligible.” We have reviewed 

the indictment, and it is not even arguably unintelligible. Appellant was charged with possessing a 

firearm in June 2011, which is before the fifth anniversary of his release from community 

supervision following his conviction for the October 2006 felony. Because the indictment was 

specific enough to inform Appellant of the nature of the accusation against him so that he could 

prepare a defense, a motion to quash would have been properly denied by the trial court. See id. 

Appellant’s trial counsel is not ineffective for failing to file futile motions. Mooney v. State, 817 

S.W.2d 693, 698 (Tex. Crim. App. 1991). Because Appellant did not demonstrate that his 

counsel’s representation fell below an objective standard of reasonableness in his first complaint, 

he failed to satisfy the first prong of Strickland.

Second, Appellant argues that his counsel should have sought a limiting instruction related 

to Nail’s testimony of his conversation with Faulkner. A limiting instruction from the trial court 

would have instructed the jury not to consider Nail’s testimony for the truth of the matter asserted, 

but only as an explanation of why Nail went to Appellant’s bedroom and why he was found with 
10

the weapon and ammunition. If we assume that trial counsel could have obtained a limiting 

instruction, Appellant failed to satisfy the second prong of Strickland because he did not explain 

how trial counsel’s failure to request a limiting instruction caused him harm. See Hernandez, 988 

S.W.2d at 772. With a limiting instruction, the jury would not have considered Faulkner’s 

testimony for the truth of the matter asserted, but instead, only as an explanation as to why Nail 

went to Appellant’s bedroom. That Nail found a firearm and ammunition in Appellant’s bedroom 

is not hearsay, and thus, not affected by trial counsel’s failure to request a limiting instruction. 

Faulkner’s request to Nail was tangential to the issues in the case and at most an isolated error. 

See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (“An isolated failure to object 

to certain procedural mistakes or improper evidence does not constitute ineffective assistance of 

counsel.”).

Third, Appellant argues that his trial counsel should have sought a limiting instruction in 

the jury charge related to Faulkner’s statements, “who was being impeached,” to the investigating 

officers. Appellant’s counsel sought, and obtained, a limiting instruction in the trial court’s charge 

to the jury. Specifically, the jury was instructed that the testimonies of Detectives Roberts and 

Shine were admitted for the purpose of impeaching Faulkner and that if the jury found that these 

statements impeached Faulkner, the jury could not consider that impeachment testimony as 

evidence of Appellant’s guilt. Because Appellant’s trial counsel obtained this limiting instruction 

in the jury charge, the error he alleges his trial counsel committed did not occur.

Fourth, Appellant argues that his counsel should have requested an accomplice witness 

testimony instruction in the jury charge. In his brief, Appellant did not provide the language that 

the accomplice witness testimony instruction should have included. If by an accomplice witness 

testimony instruction, Appellant means an instruction that informed the jury that it could not 

convict Appellant based on the testimony of his accomplices unless such testimony was 

corroborated, there are certainly valid litigation strategy reasons for not requesting such an 

instruction. As we discussed earlier, the State produced ample evidence that corroborated

Faulkner’s and Nail’s testimony, especially Appellant’s statement to Detective Shine. Appellant’s 

trial counsel could have concluded that it would have seemed irrational to argue that Faulkner’s

and Nail’s testimony was not sufficiently corroborated by other evidence. Additionally, 

Appellant’s entire case relied upon the jury’s believing Faulkner’s latest version of how Appellant 
11

was shot. Thus, Appellant’s trial counsel had sound litigation strategy for not having the jury 

equate Faulkner with the term “accomplice.” Because Appellant did not demonstrate that his 

counsel’s representation fell below an objective standard of reasonableness in his fourth 

complaint, he failed to satisfy the first prong of Strickland.

Fifth, Appellant argues that his counsel should have requested a “confession” of Appellant 

instruction in the jury charge. Again, in his brief, Appellant did not provide the language that the 

“confession” of Appellant instruction should have included. If by “confession” of Appellant 

instruction, Appellant means an instruction that his confession cannot be considered if the jury 

found it to be made involuntarily, there is no evidence to support such an instruction. See Vasquez 

v. State, 225 S.W.3d 541, 544-45 (Tex. Crim. App. 2007). A jury instruction on voluntariness of a 

confession should be submitted only if, based on the evidence at trial, a reasonable jury could have 

concluded that the statement was not voluntary. See id. (citing TEX. CODE CRIM. PROC. art. 38.22, 

§ 6 (West 2005)). Here, there is no suggestion that Appellant’s statement to Detective Shine was 

not voluntary. As such, Appellant’s trial counsel did not act unreasonably in failing to request an 

instruction to which he was not entitled. Because Appellant did not demonstrate that his counsel’s 

representation fell below an objective standard of reasonableness in his fifth complaint, he failed to 

satisfy the first prong of Strickland.

Sixth, Appellant contends that his trial counsel should have objected to Faulkner’s 

testimony based on the marital and spousal privilege. Faulkner testified that she was Appellant’s 

girlfriend, not his spouse. Appellant’s trial counsel was not ineffective for failing to make futile 

objections. Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004). Because Appellant did not 

demonstrate that his counsel’s representation fell below an objective standard of reasonableness in 

his sixth complaint, he failed to satisfy the first prong of Strickland.

Seventh, Appellant argues that his trial counsel should have called Appellant’s mother, 

Toshach, to testify for him. In order to obtain relief on an ineffective assistance of counsel claim 

based on an uncalled witness, an appellant must show the witness was available to testify and that 

her testimony would have been of some benefit to him. See id. at 52. Here, there is no evidence that 

Toshach was available to testify or that her testimony would have been helpful to Appellant. 

Therefore, we cannot conclude that trial counsel was ineffective for failing to call Toshach as a 

witness. Because Appellant did not demonstrate that his counsel’s representation fell below an 
12

objective standard of reasonableness in his seventh complaint, he failed to satisfy the first prong of 

Strickland.

Because Appellant has failed to meet his burden under Strickland, we overrule Appellant’s 

third issue.

DISPOSITION

Having overruled Appellant’s three issues, we affirm the judgment of the trial court.

BRIAN HOYLE

 Justice

Opinion delivered July 31, 2013.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)
13

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 31, 2013

NO. 12-12-00033-CR

JAMES EARL ROBERTSON,

Appellant

V.

THE STATE OF TEXAS,

Appellee

 

 Appeal from the 114th Judicial District Court

 of Smith County, Texas. (Tr.Ct.No. 114-1269-11)

 

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court below 

for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.